R. v. Lacroix, 2011 ONCJ 270

Citation: R. v. Lacroix , 2011 ONCJ 270 IN THE MATTER OF the Highway Traffic Act, R.S.O. 1990, c. H.8 Between Her Majesty The Queen prosecutor and Brian W. Lacroix defendant Ontario Court of Justice Brampton, Ontario Quon J. P. Reasons for Judgment Charge: s. 144(18) H.T.A. – “red light – fail to stop”. Trial held: February 23, 2011. Judgment rendered: May 20, 2011.

Counsel: C. Vanderbroek, assistant Crown attorney S. Carlstrom, counsel for the defendant Cases Considered or Referred To: R. v. Kurtzman, (ON CA), [1991] O.J. No. 1285 (QL), 4 O.R. (3d) 417 (O.C.A.), per Tarnopolsky, Griffiths andDoherty JJ.A. R. v. W. (D.), (SCC), [1994] 3 S.C.R. 521, S.C.J. No. 91 (QL) (S.C.C.). Statutes, Regulations and Rules Cited: Highway Traffic Act, R.S.O. 1990, c. H.8, ss. 1(1), 144(1), 144(5), 144(5)(a), 144(5)(c), 144(12), 144(13), 144(14), 144(15),144(18),144(31.2). Provincial Offences Act, R.S.O. 1990, c. P.33, ss. 33, 34, 34(3), 34(4), 35, 36, 36(2). Reference Material Cited: A.W.

Bryant, S.N. Lederman & M.K. Fuerst, Sopinka, Lederman & Bryant: The Law of Evidence in Canada, 3rd ed. (Markham,Ontario: LexisNexis Canada Inc., 2009). P. Healy, Credibility and the Presumption of Innocence, (2007) 11 Can. Crim. L.R. 217.

Exhibits entered: Exhibit "1" - Photograph with bird’s eye view of the intersection of Britannia Road West and Erin Mills Parkway, in the City ofMississauga, taken in the Spring of 2009 and numbered Occ# 2009-210202, in which Crown witness Jose Pacheco drew a blue rectangleand printed his initials below the rectangle to indicate the location of where the truck he had been driving was situated on northboundErin Mills Parkway on November 14, 2009, and a blue triangle for the location of where he had observed a silver/grey car hit two younggirls on Britannia Road West.

Pacheco also marked with an arrow the direction the silver/grey car had been travelling on Britannia RoadWest. Exhibit "2" - Photograph with bird’s eye view of the intersection of Britannia Road West and Erin Mills Parkway, in the City ofMississauga, taken in the Spring of 2009 and numbered Occ# 2009-210202, in which Crown witness, Raffaele Staffiere, marked with theinitials, “R.S.”, to indicate the location of where his vehicle had been situated on eastbound Britannia Road West on November 14,2009.

Exhibit "3" - Photograph with bird’s eye view of the intersection of Britannia Road West and Erin Mills Parkway, in the City of

Mississauga, taken in the Spring of 2009 and numbered Occ# 2009-210202, in which Crown witness, David Milloy drew a blue rectangle to indicate the location of where the vehicle in which he was a passenger had been situated on northbound Erin Mills Parkway in the dedicated right-turn lane for eastbound Britannia Road West on November 14, 2009, and a blue triangle to indicate the location of where he had observed a silver car hit two young girls on Britannia Road West. Milloy also drew an arc to represent the direction in which the silver car had been travelling and a box to indicate the silver car.

Exhibit "4" - Copy of the three-page statement of the defendant, Brian Lacroix, made on November 14, 2009, and given to Officer Bruno Pupo. Exhibit "5" - Photograph with bird’s eye view of the intersection of Britannia Road West and Erin Mills Parkway, in the City of Mississauga, taken in the Spring of 2009 and numbered Occ# 2009-210202, in which defence witness, William Wallace drew an “X” to indicate the location of where the vehicle he had been driving had been situated in the southbound left-turn lane on Erin Mills Parkway on November 14, 2009, when he observed a body in the air.

Exhibit "6" - A page of two separate photographs taken on November 14, 2009. The top photograph shows the defendant’s silver- coloured Chrysler Intrepid and William Wallace’s white van stopped on Britannia Road West, east of Erin Mills Parkway, in the City of Brampton. The bottom photograph also shows the defendant’s silver-coloured Chrysler Intrepid and William Wallace’s white van stopped on Britannia Road West, east of Erin Mills Parkway, in the City of Brampton. Exhibit "7" - A page of two separate photographs taken on November 14, 2009.

The top photograph shows the defendant’s silver- coloured Chrysler Intrepid and William Wallace’s white van stopped on Britannia Road West, east of Erin Mills Parkway, in the City of Brampton. The bottom photograph also shows the defendant’s silver-coloured Chrysler Intrepid and William Wallace’s white van stopped on Britannia Road West, east of Erin Mills Parkway, in the City of Brampton.

Exhibit "8" - Photograph with bird’s eye view of the intersection of Britannia Road West and Erin Mills Parkway, in the City of Mississauga, taken in the Spring of 2009 and numbered Occ# 2009-210202, in which the defendant, Brian Lacroix, drew a box to indicate the location of where the vehicle he had been driving had been situated on eastbound Britannia Road West on November 14, 2009, and an “X” to indicate the location of where his vehicle had been when he had first observed the two young girls on Britannia Road West. 1.

INTRODUCTION [ 1 ] This trial of a “red light – fail to stop” charge highlights the defendant’s use of the classically flawed defence that can be aptly coined as the “defence of the different time zone”, which, when typically employed by an accused motorist for this specific type of charge, usually creates an implausible and illogical factual scenario, as well as undermining that particular motorist’s credibility overall. This trial also involves a collision between the defendant’s motor vehicle and two young girls who were walking on the roadway and who were later observed flying in the air from that collision.

It also entails the observations and recollections of four independent witnesses, who were situated on different sides of the intersection and who had different but not necessarily irreconcilable accounts of the events leading up to the collision.

However, the defendant contends that the Crown has not proven he committed the red light offence beyond a reasonable doubt because these four witnesses had given different, error-filled, and inconsistent testimony, which when considered with all the evidence has provided that reasonable doubt. [ 2 ] For this traffic charge, the Crown contends that on November 14, 2009, at approximately 3:26 p.m., the defendant, Brian Lacroix, had been driving a silver-coloured Chrysler Intrepid motor vehicle that had proceeded through the intersection of Britannia Road West and Erin Mills Parkway in the City of Mississauga without stopping for the red traffic light he had been facing.

Furthermore, as a consequence of proceeding through the intersection, the defendant’s motor vehicle struck two young girls who were on the roadway on the other side of the intersection. [ 3 ] After an investigation had been conducted by police officers from the Major Collision Bureau of the Peel Regional Police, the defendant was charged with the offence of “red light – fail to stop”, contrary to s. 144(18) of the Highway Traffic Act , R.S.O. 1990, c. H.8. [ 4 ] The trial of this charge was held on February 23, 2011. At the trial, four witnesses testified for the Crown while two witnesses

testified for the defence. After closing arguments were concluded, I reserved judgment and adjourned the matter until May 20, 2011, to render my judgment. These, therefore, are my written reasons for judgment. 2. THE CHARGE [ 5 ] The defendant in this proceeding has been charged under a

Part III information sworn on February 10, 2010, with committing the offence of “red light – fail to stop”, contrary to s. 144(18) of the Highway Traffic Act , R.S.O. 1990, c. H.8. The charge states that : Brian W.

Lacroix of [removed to protect privacy], Mississauga Ontario on or about the 14th day of November, 2009, at the City of Mississauga in the Central West Region did commit the offence of: at approximately 3:26 p.m., being the driver of a motor vehicle on Britannia Road, license number [removed to protect privacy], and approaching the intersection where a red signal was showing and facing such light at Britannia Road and Erin Mills Parkway, did fail to bring the said motor vehicle to a full stop, contrary to the Highway Traffic Act, section 144(18) . 3. FACTUAL BACKGROUND (

a) SUMMARY OF EVENTS [ 6 ] On the afternoon of November 14, 2009, at about 3:26 p.m., Brian Lacroix, the defendant, had been driving his silver-coloured 2002 Chrysler Intrepid motor vehicle eastbound on Britannia Road West approaching Erin Mills Parkway in the City of Mississauga, travelling in the through lane that is immediately adjacent to the centre median which separates eastbound and westbound traffic. The defendant also said he had been proceeding at a speed between 60 to 70 k.p.h. when he entered and went through the intersection at Britannia Road West and Erin Mills Parkway.

The defendant’s vehicle then collided with two young girls who were pedestrians on the eastside of the intersection. After the collision, the older of the two girls was observed lying on the road in an unconscious state. [ 7 ] Also, just before the collision, the two young girls had been observed walking southbound on the eastside of the intersection just east of the eastside crosswalk, near the centre median that separates eastbound and westbound traffic on Britannia Road West.

The girls were on the roadway when they were struck, but were not observed to be in the crosswalk at the moment of the collision. [ 8 ] Moreover, the collision had occurred on the eastside of the intersection in the eastbound lanes of Britannia Road West, just east of the pedestrian crosswalk that is located on the eastside of the intersection. [ 9 ] In addition, there were four independent witnesses, who testified at the trial, that were at the intersection at the time of the collision.

One witness had been driving a motor vehicle eastbound on Britannia Road West; another had been driving a truck that had been stopped for a red light heading northbound on Erin Mills Parkway; another had been southbound on Erin Mills Parkway in the designated left-turn lane and stopped for a red light; and another had been a passenger in a motor vehicle heading northbound on Erin Mills Parkway in the designated right-turn lane.

Two of the four witnesses only observed the two girls up in the air and did not actually see the collision while the two other witnesses did observe a silver or grey-coloured motor vehicle strike the two girls. One witness also observed that the two girls had not been in the crosswalk when the defendant’s vehicle struck them. However, two of these four witnesses were able to identify the defendant as the driver of that silver or grey-coloured vehicle, which had struck the two girls. [ 10 ] After the collision, people at the scene immediately called the 9-1-1 operator for emergency assistance.

Shortly afterwards, Region of Peel police officers and emergency personnel arrived and attended to the girls. The police also cordoned off the area and began an investigation. The girls were then taken by ambulance to the hospital.

[ 11 ] After the police had interviewed witnesses and the defendant, and after completing their investigation of the collision, they decided to charge the defendant with committing the offence of “red light – fail to stop”, contrary to s. 144(18) of the Highway Traffic Act . [ 12 ] A

Part III information was then sworn on February 10, 2010, and the defendant was served with a summons informing him of the charge and of the date, location, and time of his first appearance in court, which was to be on March 25, 2010, at the Brampton Provincial Offences Courthouse. [ 13 ] Eventually, the trial of this charge commenced on February 23, 2011. At the trial, six witnesses testified. They are, in the order that they testified:

(1) Jose Pacheco , a witness who had been driving a truck northbound on Erin Mills Parkway that had been stopped first in line for a red light at the intersection, at the time of the collision;

(2) Raffaele Staffiere , a witness who had been driving eastbound on Britannia Road West and who had been in the process of stopping for a red light at the intersection, at the time of the collision;

(3) David Milloy , who was a passenger in a motor vehicle that had been northbound on Erin Mills Parkway in the designated right-turn lane and that had been stopped first in line waiting to make a right turn at the intersection, at the time of the collision;

(4) Officer Bruno Pupo , a police officer from the Major Collision Bureau of the Peel Regional Police, who took a statement from the defendant at the scene of the accident;

(5) William Wallace , a witness who had been driving a motor vehicle southbound on Erin Mills Parkway and either had been stopped at the intersection in the designated left-turn lane or had already entered the intersection at the time of the collision; and

(6) Brian W. Lacroix , the defendant. [ 14 ] At the onset of the trial, the defendant made a motion to quash the information, arguing that it was insufficient since it did not state the correct name of the road where the collision had occurred. The defendant also argued that the Crown had an obligation to get it right and that the correct name could have been easily found. However, I reserved ruling on that motion, since s. 34 of the Provincial Offences Act , R.S.O. 1990, c.

P.33, which governs this proceeding, permits an information to be amended at any point in the proceeding if the amendment overcomes the prejudice and injustice hurdles and the proposed amendment coincides with evidence given in the trial.

In response to the defendant’s motion to quash the information, the Crown made a motion to amend the information, to add the word, “West”, after “Britannia Road”, to correct the name of the road where the offence had occurred and argued the proposed amendment would not prejudice the defendant as he would not be confused by just adding the word, “West”, to the name of the road already in the information, but that it would be unjust to dismiss the case for the simple error of leaving out that one word in the charge.

The ruling on the motion to amend was also reserved and will be dealt with in these written reasons. (

b) DESCRIPTION OF THE INTERSECTION [ 15 ] The intersection of Britannia Road West and Erin Mills Parkway is located in the City of Mississauga. It is also described as a large and busy intersection that is controlled by automatic traffic lights. The automatic traffic lights had been operating normally on November 14, 2009.

And, for the purposes of this proceeding, Britannia Road West will be referred to as a west-east road while Erin Mills Parkway will be referred to as a north-south road. [ 16 ] In addition, there is a centre median on both sides of the intersection that separates eastbound and westbound traffic on Britannia Road West and a centre median on both sides of the intersection that separates northbound and southbound traffic on Erin Mills Parkway. [ 17 ] For the eastbound portion (or southern portion) of Britannia Road West, on the westside of the intersection, there are five lanes, in which the three centre lanes are through lanes, the most northerly lane is a designated left-turn lane, and the most southerly lane is a designated right-turn lane.

For the eastside of the intersection, the eastbound portion of Britannia Road West is comprised of two lanes. [ 18 ] In addition, for the westbound portion (or northern portion) of Britannia Road West there are three lanes on the westside of the intersection while on the eastside of the intersection there are five lanes, in which the three centre lanes are through lanes, the most northerly lane is a designated right-turn lane, and the most southerly lane is a designated left-turn lane. [ 19 ] Furthermore, for the northbound portion (or eastern portion) of Erin Mills Parkway, on the southside of the intersection there are five lanes, in which the three centre lanes are through lanes, the most westerly lane is a designated left-turn lane, and the most easterly lane is a designated right-turn lane.

On the northside of the intersection, the northbound portion of Erin Mills Parkway is comprised of three lanes.

[ 20 ] Also, for the southbound portion (or western portion) of Erin Mills Parkway, on the northside of the intersection there are five lanes, in which the three centre lanes are through lanes, the most westerly lane is a designated right-turn lane, and the most easterly lane is a designated left-turn lane.

On the southside of the intersection, the southbound portion of Erin Mills Parkway is comprised of three lanes. [ 21 ] There are also pedestrian crosswalks marked and painted on the road surface on each side of the intersection as well as white stop lines that are painted on the road surface for each direction of traffic. [ 22 ] Also, for motorists using the designated left-turn lane for southbound Erin Mills Parkway there is an advanced green-arrow indication that permits motorists to make a protected or advanced left turn to go eastbound on Britannia Road West. [ 23 ] In addition, there is a two-second all red phase for the traffic lights at the intersection, which means that when a traffic light at the intersection changes to show a red light then there is a red light in all directions of traffic for a duration of two seconds.

Furthermore, there are protected or advanced left-turn arrows or signals for all directions of the intersection. (

c) SUMMARY OF TESTIMONY [ 24 ] The following is a

summary of the testimony given by the six witnesses who testified in the trial:

(1) JOSE PACHECO, a witness who had been driving a truck northbound on Erin Mills Parkway that was stopped first in line for a red light at the intersection at the time of the collision [ 25 ] Jose Pacheco testified he works as a truck driver and had been driving a truck on November 14, 2009, which he further described as a tractor-trailer with a float trailer that is used for carrying construction equipment.

In addition, he said he had been driving northbound on Erin Mills Parkway in the City of Mississauga when he had to stop for a red traffic light located at the intersection of Erin Mills Parkway and Britannia Road. [ 26 ] Pacheco also said he had been first in line in the right lane and completely stopped. While he had been waiting for his traffic light to turn green, he said he witnessed a motor vehicle that was eastbound on Britannia Road enter the “intersection” on a red light and hit two young girls. He also said he thinks the vehicle was a silver or grey colour.

And, although he said the event had occurred almost two years ago, he said he would not forget that day. [ 27 ] In addition, on a birds-eye view or aerial photograph of the intersection (Exhibit #1), Pacheco drew a blue rectangle in the right northbound lane of Erin Mills Parkway just behind the stop line on the southside of the intersection to indicate where his vehicle had been stopped at the time he had observed the girls being struck. He also printed his initials, “J.P.”, below the blue rectangle to identify it as his truck.

In addition, he drew a triangle to indicate the spot where he had observed the girls being hit by the silver or grey-coloured car that he said had not stopped for the red light. He placed the triangle in the eastbound lane of Britannia Road West just east of Erin Mills Parkway and just south of the centre median. He also drew an “arrow” in the intersection pointing eastbound to indicate the direction he had observed the silver/grey car travelling on Britannia Road. [ 28 ] In addition, Pacheco said that from his truck his view had been good.

He also said the driving conditions for that day were dry. [ 29 ] After the collision, Pacheco said he got out of his truck and went to the girls. He said the older girl, who was 15 years old, was unconscious and the younger one, who was 12 or 13 years old, was on the boulevard on the median. In addition, he said he had observed the driver of the car that hit the girls get out and check on the girls by looking over at the girls. He also described the driver as an older man with grey hair.

He then pointed out the defendant in the courtroom as the driver of that car. [ 30 ] Furthermore, Pacheco said that he and the defendant did not speak to each other. He also said that the driver of the silver car was still there when the police arrived and that the police did speak to the driver of that silver car.

[ 31 ] Pacheco also said he had given a statement to the police. [ 32 ] In addition, Pacheco said there were other people there as well and that he also observed people coming out of their cars. He further said that he and another man were the first out to check on the girls. Moreover, he said he thinks the other man had been beside him making a right turn. [ 33 ] Furthermore, Pacheco said the accident happened at approximately noon to 1:00 o’clock, when he had finished work and was heading back to the yard. Furthermore, he said it had been light out.

He further commented that on the day before the accident he had worked from six to five o’clock. And, on the night before the accident he said he had gone home, showered, ate, and then slept. [ 34 ] Also, Pacheco said he is familiar with the intersection of Erin Mills Parkway and Britannia Road. [ 35 ] Moreover, when he had been waiting for his traffic light to turn green, Pacheco said he had looked to his left to look at the other light and had observed it go from yellow to a red light. He said he then began to disengage his clutch so he would be ready to go forward.

He also said that when those lights had turned to yellow he had noticed that people had started to stop. And, then when those lights had turned red, he said everyone had stopped. However, he did see a couple of cars go through the amber or yellow light.

He also had acknowledged that if a person could not stop safely then it would be all right to proceed through the intersection on an amber light. [ 36 ] Pacheco also said the amber or yellow lights he observed had a duration of three or four seconds and then said he observed these lights for east and westbound traffic turn to red. [ 37 ] In addition, Pacheco said he had held his truck with his clutch, getting ready to go forward.

He also said that before he moved forward he had observed the car a couple of seconds after the light had turned red, but had not yet seen his own light turn to green. [ 38 ] Furthermore, Pacheco said he had first observed the grey car approaching before it had reached the intersection. In particular, he said that he had first observed the grey car going east on Britannia when the light had been turning yellow. He also said he had observed the grey car when he had noticed that light turning to yellow since he had been looking in that light’s direction.

Furthermore, he said he had been sitting at the intersection when that light had turned to yellow and then to red, and then he said he had tried to judge when his own light would turn to green. He also said he had been stopped there and had a view of everything. [ 39 ] Pacheco also said that because the event had happened almost two years ago, he thinks the car he had observed go through the red light had been a silver or grey-coloured car. However, he said he would not forget that day. [ 40 ] Moreover, Pacheco said his own light had not turned to green prior to him observing the silver car go through.

In addition, when asked whether anyone had the right of way when he observed the grey car, he responded that everyone should have been stopped. He also said the traffic lights had been in an “all red” phase, when he observed the grey car “go through”. [ 41 ] In addition, Pacheco said that Britannia Road eastbound has five lanes, which included both a designated left and right-turn lane. Of those five lanes, he said three of those eastbound lanes were through lanes.

He also said the number of lanes northbound on Erin Mills Parkway were the same. [ 42 ] Furthermore, Pacheco said he did not hear the screeching of tires from the grey car. In fact, he said he had actually observed the grey car braking and going to stop, but then it accelerated as it went through the light, and it had been that particular action, which had been what had caught his attention. He also said he had been watching that particular driver and had been kind of cursing him because in his opinion the driver of that grey car had ample time to stop.

Moreover, he had acknowledged that in his own life he had gone through amber lights.

(2) Raffaele Staffiere, a witness who had been driving eastbound on Britannia Road West and who had been stopping for a red light at the intersection at the time of the collision

[ 43 ] Raffaele Staffiere testified he is 45 years old and a security contractor that includes being involved in building courthouses. He also said he has been driving in Ontario since he was 16 years old and is familiar with the colours of traffic lights. [ 44 ] On November 14, 2009, Staffiere said he had been driving a 2007 white-coloured Cadillac Escalade. [ 45 ] Also, Staffiere indicated on a birds-eye view or aerial photograph of the intersection (Exhibit # 2) that he had been travelling eastbound on Britannia Road and had slowed down as he approached Erin Mills Parkway.

He also indicated on the photograph that his vehicle had been in the right lane approaching the intersection, which he had marked with his initials, “R.S.” to indicate the location of his vehicle. [ 46 ] In addition, Staffiere said the light for him had been red. He also said he had observed the light for him being green as he approached the intersection, then saw it turn yellow, and then turn to red. When the light turned red, he said he had been about 15 to 20 feet from the crosswalk. However, he could not say how far back he had been when the light had turned amber.

He also said the amber light had lasted for two or three seconds and that the light had been green prior to it turning amber. However, he could not testify as to his speed because he had not looked down at his speedometer. He also said his Escalade vehicle is an automatic. [ 47 ] At approximately 10 feet from the intersection, Staffiere said he had looked up and had observed two girls fly into the air. He said he then noticed a vehicle and one girl ten feet up, while the other one had not been as high. He then called 9-1-1.

He said the girls he had seen in the air had been hit by a vehicle, which he thinks had been a grey Chrysler Intrepid. Although he had not been sure about the model of the car, he said he was definitely certain that it had been a Chrysler vehicle. Moreover, i n describing what he had observed while stopping for the red light he said he had been still approaching the intersection while the light was red and also when he had observed the girls in the air.

He emphasized that he had not yet come to a full stop when he had observed the girls in the air. [ 48 ] Furthermore, Staffiere said other cars had been stopping as well. He also said the accident had happened at approximately 3:30 pm. In addition, while he had been calling 9-1-1, he said he had to wait for his light to turn green before he could proceed through the intersection.

He said he then jumped his vehicle onto the sidewalk at the other side of the intersection. [ 49 ] However, Staffiere also said he could have been stopped for a couple cycles of lights before he actually got to drive through the intersection. In addition, he said he had been at the intersection for one minute or for one minute and a half before the light had turned green for him.

He also said he did not notice if there had been an advanced left turn or if there indeed had been an advanced left turn. [ 50 ] In addition, when asked if he had observed who drove the Chrysler Intrepid, Staffiere pointed to the defendant and said it had been the person in the grey suit in the courtroom. He also said he believes the driver had been still in the Intrepid, since Staffiere himself had been more concerned with the condition of the girls and had immediately gone to the girls.

However, he did say the driver of the Intrepid eventually got out of the car. [ 51 ] Moreover, when describing the driving conditions at the time, Staffiere said it had been a typical day with it being sunny out, but chilly, and not raining. He also said the roads were dry. [ 52 ] Furthermore, Staffiere said it had been the weekend and that his son had been with him and that they were on their way to his son’s hockey practice or game.

He further said his son had been 14 years old at that time, but would not be testifying because his son did not see what had happened. [ 53 ] Staffiere also recollected that there were at least three eastbound “through” lanes for Britannia Road at Erin Mills Parkway. In addition, he thinks there are two lanes of traffic for northbound Erin Mills Parkway and the same for southbound Erin Mills Parkway. He also said there were designated right and left turn lanes in all four directions. He also acknowledged that the intersection is big and had been busy and is located in Mississauga.

He further acknowledged that quite some time had passed since the incident occurred. [ 54 ] In addition, Staffiere believes the speed limit on Britannia Road at that intersection had been 50 or 60 k.p.h., but does not know for certain. However, he did say that he is familiar with the intersection and has lived in the area for 10 to 15 years, but had not been recently at that intersection for at least six months.

[ 55 ] Furthermore, Staffiere said he had observed the Intrepid vehicle immediately after the accident, but had did not see where the Intrepid vehicle had come from. In addition, he said he had observed cars to his left in the act of stopping and that those cars in those lanes did come to a stop. [ 56 ] In addition, Staffiere said it had only taken the police minutes to get there. He also said he spoke to the police about 30 to 40 minutes after the accident, but cannot say whether the driver of the Intrepid spoke to the police.

Furthermore, he said he gave a statement to the police, read his statement, and did not make any corrections to his statement. He also said he had been at the scene of the accident for the entire time. And, when shown a copy of his statement during his testimony, he acknowledged that it was his signature on both pages of the statement and that in his statement he had made a reference to a “stale red light” at Erin Mills Parkway.

He then explained that to him a “stale red light” meant the light had been red as he approached it and that it did not mean the light had been red for a long time just about to turn green. [ 57 ] Staffiere also said he had first put his foot on the brakes when the light had changed to amber. He also guessed that he had been about 30 feet from the intersection when the light had turned to amber. However, he did not know which vehicles were to his left. He further said he did not know his speed nor the speed limit, but said he usually drives at the speed limit, although he admits not always.

He also acknowledged that it is difficult to drive at 50 k.p.h. [ 58 ] Moreover, Staffiere said he did a regular and not a sudden stop. He also said there had been cars going through the amber light in front of him, but he had no information on what kind of car had gone through the intersection. He also acknowledged that if it were not safe to stop then one can go through an amber light.

In addition, he said he did not have any information that there had been cars in both lanes to his left which had gone through the amber light. [ 59 ] Furthermore, Staffiere said he had observed the girls in the air as he was easing off his brakes and just before he stopped. He said he then in very short order called 9-1-1 using his blue tooth communication device and told them he had observed an accident in which two young girls had just been hit by a vehicle.

Also, he said his blue tooth device then fell off. [ 60 ] Staffiere also said he did not see the colour of the lights for Erin Mills Parkway when his light had turned red.

(3) David Milloy, a witness who was a passenger in a motor vehicle that had been northbound on Erin Mills Parkway in the designated right-turn lane and that had been stopped first in line at the intersection at the time of the collision [ 61 ] David Milloy testified that he is a solutions architect. He also said that on November 14, 2009, he had been at the intersection of Britannia Road and Erin Mills Parkway in Mississauga. He further said he had been a passenger in a vehicle in which his wife had been the driver.

In addition, he said the vehicle that he had been in had been planning to make a right turn onto Britannia Road. [ 62 ] In addition, Milloy said the vehicle he had been riding in had been approaching the intersection while travelling northbound on Erin Mills Parkway in the right-turn lane to go eastbound on Britannia Road. He said he then observed two children from the northside crossing southbound, but not on the crosswalk. He said they had made a diagonal from the median.

He also said he had been looking toward the middle of the intersection when he observed a silver or grey-coloured car enter the intersection heading southbound and then turn east onto Britannia Road. Furthermore, he said he had observed to his left the car travel southbound and then come across.

He then said that this car then met the children and then he observed a running shoe in the air and at that point he realized the children had been struck. [ 63 ] Furthermore, on a bird’s eye view or aerial photograph of the intersection (Exhibit #3), Milloy marked where the vehicle his wife had been driving had been at the time of the accident. He also marked a triangle on the photograph where he had observed the girls being struck. In addition, he said that when he had first observed the car that had hit the girls, the car had been turning in an arc.

He then drew an arc on the photograph with an arrow indicating the direction in which the car had been travelling. He also drew a box to indicate the car that had hit the girls. [ 64 ] Milloy also said that at the moment the children had been struck, he noticed the cars had stopped. He said he then searched for his cellphone in the car. He then noticed a gentleman get out of the car and a lady in a pantsuit with a cellphone. He said they were on the westbound side of Britannia Road. He also said four or five people had helped the girls.

[ 65 ] In addition, Milloy said he had stayed at the scene and that the police had come fairly quickly. He had thought it had taken about three minutes. Furthermore, he thinks the accident had happened sometime after 4:00 p.m. [ 66 ] Furthermore, Milloy said that for the driving conditions it had been light out. He also said he could see clearly. In addition, he said he had observed an older man that appeared to be distraught. However, he did not see anyone exit the vehicle that had hit the girls.

He said he had observed the distraught man at the rear of the vehicle facing in a westerly direction. [ 67 ] Milloy also said he did not recall the colour of the light that he had been facing. [ 68 ] In addition, Milloy said his wife had spoken to the police but she had not observed the accident. He said the police had questioned her, but did not take a statement from her. However, he said he had given a statement.

(4) Officer Bruno Pupo, a police officer from the Major Collision Bureau of the Peel Regional Police Service, who had taken a statement from the defendant at the scene of the accident [ 69 ] Officer Pupo testified he arrived at the scene at 5:10 p.m. on Saturday, November 14, 2009. He said that when he had arrived other uniform officers were already there.

He also said that he is in a special unit called the Major Collision Bureau. [ 70 ] In addition, Officer Pupo said that when he arrived he had observed a 2002 four-door Chrysler Intrepid vehicle, silver in colour, in a stationary position in the lane adjacent to the centre median. He said the vehicle had the Ontario marker of [removed to protect privacy]. In addition, he said it was just getting dark out. [ 71 ] Furthermore, Officer Pupo said he had observed a van stopped next to the Intrepid and parked at a 45-degree angle.

He later found out the van had not been involved in the accident, but its driver had been a witness. [ 72 ] Officer Pupo said a gentleman then identified himself as the driver of the Chrysler vehicle and gave his name as Brian Lacroix. Officer Pupo also said that particular gentleman is before the court today. In addition, Pupo said the gentleman had been very cooperative. When Officer Pupo had asked the gentleman if he had any concerns with assisting the officer by telling what had happened, the gentleman said he had no issue with providing a statement.

Furthermore, before the gentleman had actually given the statement to the officer, Officer Pupo had asked the gentleman if he were willing to provide a statement that the officer would be able to use in court. Officer Pupo said the gentleman, who had appeared shaken, then informed the officer that he had no problem with giving a statement. [ 73 ] The Crown also conceded there had been no need for a voir dire to be held to determine the voluntariness of the defendant’s statement, since the statement was not inculpatory.

The three-page handwritten statement signed by the defendant and initialed by Officer Pupo on all three pages was then entered as Exhibit #4. The following is the three-page statement written by the defendant that had been made at 5:46 p.m., on 2009/11/14, and then given to Officer Pupo: I Brian Lacroix am 55 years of age and am currently residing at [removed to protect privacy] in the City of Mississauga. I am married and have been for the last 25 years. I have been driving for the past 35 years and have a perfect record, with only one minor speeding ticket last year.

I own and operate a 2002 Chrysler Intrepid, silver in colour 4 door with licence plate [removed to protect privacy]. The vehicle is insured by “ING” Insurance with policy # [removed to protect privacy] with an expiry date of 25/06/2010. The vehicle has no apparent mechanical problems to date, and is up to date on its maintenance. On Saturday November 14, 2009 at Approx 3:30 p.m., I left my residence alone, and was on my way to the Legion in Streetsville, located at 101 Church St, I had not consumed any alcohol at that point, and my health is in good standard. I wear eye glasses to aid me with my sight.

I drove onto Britannia and headed eastbound towards Erin Mills Parkway.

The roads were dry, and the weather was sunny with a med temperature of +12 C. Traffic was med-heavy at some points, and I was travelling the average speed limit as per the other vehicles. I was travelling in lane #3, being the closest to the center median. I approached the white line of the intersection on a green light, as I proceeded into the intersection the light turned amber on me. I noticed two young girls standing on the median, facing in a south direction. As I approached the area of the pedestrian crossway, the two girls stepped off the median, directly into my path of my vehicle.

The girls appeared to be in an area of about 20 feet from the crossway. (east of intersection). It happened so quick that the next thing I realized my vehicle has struck the two girls. I immediately stopped to render assistance. It did appear that both girls were eating food, which was contained in take out cardboard containers. One girl hit my drivers side area of my front of the car, and the second girl hit my left side of my front of my car. The girl who struck my right side was thrown to the ground and did appear to be seriously hurt as she did not communicate.

The girls who struck my left side fell into the area of the median, and was found sitting up, and I approached her. She asked me is “she was dreaming”. Quickly people started to gather around me and assist with the girls. I was pretty shaken up by the incident but over all appear OK I did provide a statement to police, and have been very co-operative with them. Looking back at the incident, it happened so quickly that as the girls stepped off the center median, I had no time to swerve swerve lanes to avoid hitting them.

All I could do is brake and control my car. [ 74 ] Furthermore, Officer Pupo said he did not actually recall the street sign to know if the road is actually called Britannia Road or Britannia Road West. [ 75 ] In addition, Officer Pupo said the intersection was controlled by traffic signals that were coloured yellow, red, and green. He also confirmed the lights were not of any other colours. He further said the lights were sequenced and that they were solid lights and not flashing lights.

He then clarified what he had meant by the term, “flashing lights”, by giving an example of a flashing light as the type of light that one would see flashing at a stop sign. [ 76 ] Officer Pupo also said there were protected left-turn signals or arrows all the way around the intersection.

(5) William Wallace, a witness who had been driving a motor vehicle southbound on Erin Mills Parkway in the designated left turn lane at the intersection at the time of the collision [ 77 ] William Wallace testified he is 80 years young and that he had retired six years earlier. He also said he used to work as an industrial mechanic. In addition, he said he is a former military man with 25 years in the military. He further said he had spent two years in gunnery and 23 years in transport where he had been an instructor and examiner.

He also said he has lots of driving experience. [ 78 ] In addition, Wallace said he had been in the southbound left-turn lane on Erin Mills Parkway on November 14, 2009. He also said that when he observed a body up in the air, he had to make a stop at a red light. He also said he had looked to his left and right to check for traffic. [ 79 ] Furthermore, on a bird’s eye view or aerial photograph of the intersection (Exhibit #5), Wallace drew an “X” to indicate where

he had been when he had observed the body in the air. [ 80 ] In addition, Wallace said he lived nearby at the next block. He also said that he had just taken his wife to the bingo hall. [ 81 ] Wallace also said he is familiar with the intersection since he had lived there for 18 years. Furthermore, he said that Erin Mills Parkway is a north-south road and that Britannia Road is an east-west road. [ 82 ] Moreover, Wallace said that he had been in a regular left-hand turn lane marked by white line. He also said he had looked up and had observed that the light for him had been red.

Furthermore, he is sure he had a red light and that the light had been red for some time. In addition, he said that when he had stopped his vehicle the light had been still red. He also said that it had been a couple of minutes before the light then turned green. [ 83 ] Furthermore, Wallace said that when he had observed the body in the air he had been thinking, because of the angle, she must have been sitting on top of the car. [ 84 ] In addition, Wallace said he had given a statement to the police that day.

Furthermore, he said the police had taken him to a police cruiser to take his statement and that he had gone into the interior of the cruiser to give his statement. He also said he had picked up a phone and shoes. In addition, he said he had first-aid training. [ 85 ] Furthermore, when shown a photograph that contained a van (Exhibit #6), Wallace said that it was not his van, but then said that it looked like his vehicle. He also said there had been a body on the road, so he had to stop.

Then after being shown another photograph of a motor vehicle (Exhibit #7), he said it had been the motor vehicle that had hit the girl. [ 86 ] Wallace also said he had been there for five minutes and did have a conversation with the gentleman.

He also said his vehicle had been left there all day and that a police officer had given him a ride home. [ 87 ] In addition, even though Wallace had acknowledged that it was his signature on both pages of the statement that he had given to the police, when the statement that he supposedly made on the day of the collision had been read back to him while he was in the witness stand, in which the statement in question stated that he had been first in line to make a left turn and that when he had received an advance left-turn signal he had made a left turn and then when he had been halfway in the intersection he then had observed the girl in the air, he was adamant about the

part in the prior statement in which it was stated he had gone through a green light had been wrong. Instead of having a green light, he testified at the trial that he actually had a red light and that he had been in the left-turn lane when he had observed the girl in the air. He also said he had come to a stop for a red light. In addition, he said he had been through that intersection so many times.

He also said he takes his wife to bingo on many occasions because his wife is a bingo nut. [ 88 ] In addition, Wallace said he then stopped and got out and said, “Don’t pick up the body you may break the neck.” [ 89 ] Furthermore, Wallace said he spoke to the gentleman who had been upset. He said he had gone over to the driver, but that he did not know that the gentleman had been the driver at the time. He also said the gentleman had been distraught.

He then said he heard somebody screaming bloody murder. (6) the defendant, Brian Lacroix [ 90 ] The defendant testified he is 56 years old and resides in Mississauga. He also said he works for a medical device company in Oakville as the director of quality assurance and is also involved with regulatory affairs. He also said he has worked for this company for over 14 years. [ 91 ] In addition, the defendant said he had moved to Ontario from Montreal in 1984 and has been driving in Ontario since 1984. He also said he had driven in Montreal.

[ 92 ] Furthermore, the defendant said that before he had gone through the intersection he had been coming from his home. He also said it had been 3:30 p.m. in the afternoon and that he had been driving his car, which is a 2002 Intrepid. He said he had bought the car when it had been three years old and that he has owned the car since 2005. He then said he had been on his way to the Royal Canadian Legion to work on the poppy campaign, where he was going to sort and roll coins that had come from the sale of poppies.

He also said there had been lots of work to be done after November 11 and that it would take weeks to sort and roll the collected coins. He further said that he has been member of the Legion for 10 years. Furthermore, he said he has served on the entertainment committee and is an active volunteer there, for which he had received a Certificate of Appreciation from the Legion for his volunteer activities. [ 93 ] In addition, the defendant said he had been on Britannia Road on the way from his home. He also said that Erin Mills Parkway has five northbound lanes with two lanes as “through” lanes.

In addition, he said there are two lanes going southbound. Moreover, he said he had been in lane #3, which is the lane beside the median, when he drove through the intersection. He also said that because he is familiar with that intersection he had been driving in that lane because of the designated right-turn lane on northbound Erin Mills Parkway that goes immediately onto Britannia Road eastbound and merges into a “through” lane eastbound.

He also clarified that there is no actual merge lane for vehicles eastbound and that a car going northbound to eastbound Britannia Road has to make a turn into one of the through lanes. Furthermore, he said he had observed on ten occasions over the years that there have been close calls or near collisions and that is the very reason why he drives in the farthest lane away from that turn lane. He also said that it had been a habit of his to drive in the lane closest to the median to avoid problems at that intersection. Moreover, he said he is careful in that area and had earlier moved over to that lane.

He also said that because the northbound turn lane merges immediately with Britannia Road he had taken the lane closest to the median to avoid any problems. [ 94 ] Furthermore, the defendant said he does not carry a cellphone, Blackberry, or any other telecom device. He also said he had not consumed any alcohol and had not taken any medication that would affect his ability to drive.

And, although he is wearing glasses he said they are pharmacy-reading glasses and that he is not required to wear glasses in order to drive. [ 95 ] The defendant also said he had been driving eastbound at a speed of 60 up to 70 k.p.h. for the 50 k.p.h. speed limit. He also said there is a slight downhill grade for eastbound traffic before Erin Mills Parkway. Moreover, he said he did not accelerate before he got into the intersection, but drove at a steady speed. [ 96 ] In addition, the defendant said the temperature had been 10 to 12 degrees. He also said it had been very sunny and dry.

In addition, he said the roads were dry. Moreover, he said that no one else had been with him in the car at the time. He also said the traffic had been average for Britannia Road that day. He further said there had been some traffic but that it had not been heavy. [ 97 ] Furthermore, the defendant said he had observed the traffic lights from a distance. He said the light for him had been green when he first observed the lights, and then, as he moved along the light turned to amber while he had been in the intersection.

He also said the light had turned amber when he had been about one-third of the way in the intersection. [ 98 ] The defendant also said he has never met Jose Pacheco or any of the other witnesses who testified in the trial. [ 99 ] In addition, the defendant said he travels through the intersection a couple of times a week. [ 100 ] Furthermore, the defendant said he had first observed the girls as he hit the crosswalk at the other side of the intersection. [ 101 ] Moreover, on a bird’s eye view or aerial photograph of the intersection (Exhibit #8), the defendant drew a box to indicate the location of his vehicle and marked with an “X” where his car had been when he had first observed the girls. [ 102 ] The defendant also said that when he spoke to the police he had been shaken up because of hitting the girls. [ 103 ] Furthermore, the defendant said he did not believe there had been a car to his left or to his right, nor does he recall any cars to his left or to his right or to his side or beside him.

He also said that cars had been moving through the intersection until the light had turned red. In addition, he said he did not look for cars to his left or to his right, but had been looking ahead. Moreover, he said he did not see any cars slowing down. However, he does remember observing cars that were at a distance in front of him, but does not recall any cars

behind him nor does he believe there were any cars following him that were ready to hit him. [ 104 ] The defendant further said that no car had stopped in front of him, nor does he believe that another car had hit the girls. [ 105 ] Moreover, the defendant said that when he had gotten out of his car to check on the girls, he believes he had observed William Wallace’s car. [ 106 ] Furthermore, the defendant said the traffic had been light to medium. He also said the traffic on Britannia Road, traveling east to west, is not usually very heavy. In addition, he said he had not been alone on the road. 4.

APPLICABLE LAW [ 107 ] The “red light – fail to stop” offence set out in s. 144(18) of the Highway Traffic Act , R.S.O. 1990, c. H.8, states that: Red light 144(18) Every driver approaching a traffic control signal showing a circular red indication and facing the indication shall stop his or her vehicle and shall not proceed until a green indication is shown. [ 108 ] In addition, the following

definitions contained in s. 1(1) of the Highway Traffic Act , R.S.O. 1990, c. H.8, are relevant to this proceeding: 1(1) In this Act, … “crosswalk” means, (

a) that part of a highway at an intersection that is included within the connections of the lateral lines of the sidewalks on opposite sides of the highway measured from the curbs or, in the absence of curbs, from the edges of the roadway, or (

b) any portion of a roadway at an intersection or elsewhere distinctly indicated for pedestrian crossing by signs or by lines or other markings on the surface; … “highway” includes a common and public highway, street, avenue, parkway, driveway, square, place, bridge, viaduct or trestle, any part of which is intended for or used by the general public for the passage of vehicles and includes the area between the lateral property lines thereof; … “intersection” means the area embraced within the prolongation or connection of the lateral curb lines or, if none, then of the lateral boundary lines of two or more highways that join one another at an angle, whether or not one highway crosses the other; … “pedestrian crossover” means any portion of a roadway, designated by by-law of a municipality, at an intersection or elsewhere, distinctly indicated for pedestrian crossing by signs on the highway and lines or other markings on the surface of the roadway as prescribed by the regulations; … “roadway” means the part of the highway that is improved, designed or ordinarily used for vehicular traffic, but does not include the

shoulder, and, where a highway includes two or more separate roadways, the term “roadway” refers to any one roadway separately and not to all of the roadways collectively; [ 109 ] Furthermore, the term, “intersection”, for the purposes of offences set out in s. 144 of the Highway Traffic Act is also defined in s. 144(1) , which states that where there is a pedestrian crosswalk indicated by markings on the roadway then the pedestrian crosswalk forms part of the intersection: Traffic control signals and pedestrian control signals 144(1) In this section, … “intersection” includes any portion of a highway indicated by markings on the surface of the roadway as a crossing place for pedestrians; (“intersection”) [ 110 ] Also, not only are motorists who approach an automatic traffic light showing a red light required to stop, but they must do so at or before a specific location.

The specific locations where the motorist must stop is set out in s. 144(5) of the Highway Traffic Act , R.S.O. 1990, c. H.8: Where to stop – intersection 144

(5) A driver who is directed by a traffic control signal erected at an intersection to stop his or her vehicle shall stop, (

a) at the sign or roadway marking indicating where the stop is to be made; (

b) if there is no sign or marking, immediately before entering the nearest crosswalk; or (

c) if there is no sign, marking or crosswalk, immediately before entering the intersection. [ 111 ] Moreover, there are also other provisions in the Highway Traffic Act that appear to be relevant to this proceeding, such as what motorists may be permitted do when faced with a green light under s. 144(12) , a flashing green indication under s. 144(13) , a green arrow indication under s. 144(14) , or an amber indication under s. 144(15) : Green light 144

(12) A driver approaching a traffic control signal showing a circular green indication and facing the indication may proceed forward or turn left or right unless otherwise directed. Flashing green 144

(13) A driver approaching a traffic control signal showing a circular flashing green indication or a solid or flashing left turn green arrow indication in conjunction with a circular green indication and facing the indication may, despite subsection 141(5), proceed forward or turn left or right unless otherwise directed.

Green arrow 144(14) Every driver approaching a traffic control signal showing one or more green arrow indications only or in combination with a circular red or circular amber indication and facing the indication may proceed only to follow the direction shown by the arrow. Amber light 144

(15) Every driver approaching a traffic control signal showing a circular amber indication and facing the indication shall stop his or her vehicle if he or she can do so safely, otherwise he or she may proceed with caution. [ 112 ] Furthermore, upon conviction, the penalty for contravening s. 144(18), as of November 14, 2009, is contained in s. 144(31.2) of the Highway Traffic Act , R.S.O. 1990, c.

H.8, which on that date set out a minimum fine of $150 and a maximum fine of $500: Penalty for disobeying red or amber light 144(31.2) Every person who contravenes subsection (15) or (18) is guilty of an offence and on conviction is liable to a fine of not less than $150 and not more than $500. 5. ISSUES [ 113 ] The following issues have arisen f or the determination of whether the Crown has proven beyond a reasonable doubt that the defendant had committed the offence of “red light – fail to stop”: (

a) In regards to the Crown’s motion to amend the charge in the information to identify the location of the offence to be “Britannia Road West” from “Britannia Road”, could this amendment be done without prejudice to the defendant and without causing injustice to occur? (

b) Has the Crown proven beyond a reasonable doubt that the defendant committed the actus reus of the offence of “red light – fail to stop”? (

c) For the purposes of s. 144(18) and for this particular proceeding, what does the word “intersection” refer to? (

d) What evidence is there, if any, that proves the defendant had not yet reached the white stop line painted on the road surface when the traffic light he was facing had turned red? (

e) Are the four versions of the independent witnesses’ account of what happened inconsistent or consistent with the Crown’s contention that the defendant had failed to stop for a red light? 6. ANALYSIS [ 114 ] The defendant has been charged for failing to stop for a red traffic light located at the intersection of at Britannia Road West and

Erin Mills Parkway, in the City of Mississauga. In his testimony, the defendant stated the traffic light at that intersection had been greenfor him when he entered the intersection and only turned to amber when he was about a third of the way into the intersection. Moreover,only one of the four independent witnesses who testified in the trial actually observed what colour the light had been or would have beenfor the defendant just before the collision. However, that particular Crown witness disagreed with the defendant’s evidence that thetraffic light had been green.

Instead, that Crown witness had testified that when he observed the traffic light for east and westboundBritannia Road West change to red, the defendant’s vehicle had not yet entered the “intersection” and that the red light had been showingfor a couple of seconds when he had observed the defendant’s vehicle “go through”. In addition, all four of the independent witnessesgave different versions or accounts of what they had observed of the event in question.

And, it is these different versions, which thedefendant contends are full of inconsistencies and errors, that forms the basis for the defendant’s argument for a dismissal of the chargebased on the presence of reasonable doubt. [115] Furthermore, since the defendant has testified in his own defence and his testimony contradicts what a key Crown witness hadobserved about the defendant going through the intersection on a red light, the analytical tool set out in R. v. W. (D.), (SCC), [1994] 3 S.C.R. 521, [1994] S.C.J.

No. 91 (QL) (S.C.C.), for determining whether the Crown has proven the defendantcommitted the offence beyond a reasonable doubt, aptly applies. [116] In addition, there are several issues that need to be resolved in deciding whether the Crown has proven the actus reus of theoffence beyond a reasonable doubt, including where the defendant’s vehicle was at the time the traffic light had turned red for eastboundtraffic on Britannia Road West, what does the term “intersection” refer to for the purpose of s. 144(18) and for this proceeding, andwhether the four independent witnesses have given unreliable testimony about the event in question. (

a) Type of offence [117] For this charge, only the actus reus of the offence has to be proven by the Crown. In other words, no mental or fault element isrequired to be proven by the Crown as an element of the “red light – fail to stop” offence under s. 144(18), because in Ontario this trafficoffence has been held to be an absolute liability offence: R. v. Kurtzman, (ON CA), [1991] O.J. No. 1285 (QL), 4O.R. (3d) 417 (O.C.A.), at paras. 15, 34, and 35.

As such, fault or negligence is not an element of the offence [emphasis is mine below]: It is common ground that the Highway Traffic Act is a public welfare statute, aimed at ensuring public safety through the orderly controlof traffic. Therefore, it is clear that, pursuant to Sault Ste. Marie, supra, offences created by the Act are presumed to be ones of strictliability, rather than absolute liability, unless there is clear legislative direction to the contrary. Whether this presumption has beendisplaced with respect to s. 124(16) depends on four primary considerations, as enunciated in Sault Ste. Marie: (

i) the over-allregulatory pattern adopted by the legislature; (ii) the subject-matter of the statute; (iii) the importance of the penalty; and (iv) theprecision of the language used. … The words used in s. 124(16) are mandatory and clearly do not anticipate a defence of due diligence or reasonable care being raised.This is particularly so in light of the fact that other provisions of

Part IX of the Act do expressly contemplate that an accused may beexculpated where reasonable and prudent conduct has been demonstrated. Such choice of language in other provisions and its absencefrom the provision in question indicate that the legislature intended to create an offence of absolute liability. In my view, the legislature had a similar intention with respect to s. 124(18) [now 144(18)].

It may be that the language of s. 124(18)[now 144(18)], providing that an emergency vehicle "may proceed without a green indication being shown if it is safe to do so" doesanticipate that any inquiry into a driver's assessment of whether it is safe to proceed may be tempered by a reasonableness standard.That is, a defence of due diligence may be available to those who, after stopping, exercise all reasonable care to ascertain whether it issafe to proceed. However, the appellant in this case failed to bring his vehicle to a full stop.

In my view, the language of at least that partof the provision is mandatory and absolute and not subject to an inquiry into the reasonableness of the driver's efforts. As noted earlier,the driver either stops or he does not. In this case, he did not and, therefore, in my view, he contravened the provision. [118] Therefore, the Crown is only required to prove that the traffic light at Erin Mills Parkway for eastbound traffic on BritanniaRoad West, in the City of Mississauga was showing a red indication as the defendant’s vehicle approached that light and that thedefendant did not stop his vehicle. (

b) Motion To Quash the Information

[ 119 ] In dealing first with the motion to quash the information, in which the defendant contends the information should be quashed for that reason that the name of the road where the offence is alleged to have occurred had been incorrectly named in the charge. In particular, the charge indicated the offence occurred on “Britannia Road” in the City of Mississauga, but the defendant points out that the correct name for the road is actually “Britannia Road West”.

The Crown in responding to the motion to quash the information made a motion to amend the charge to add the word, “West”, after the words, “Britannia Road”, and argued that the amendment could be made without any prejudice to the defendant or an injustice occurring, since it is only a minor defect that does not go to jurisdiction. [ 120 ] Undeniably, the defendant’s argument for quashing the information is based on a line of reasoning that stems from a bygone era, when form prevailed over substance and informations were as a matter of course quashed if i’s were not dotted or t’s not crossed.

Fortunately, that approach is no longer employed, having been replaced by a set of principles which emphasize substance over form and where charges are to be decided on the merits of the case and not merely dismissed on technical or procedural defects. As part of this paradigm shift, broad amendment powers were established and provided for in the Provincial Offences Act , the legislation governing the procedures for trials of regulatory offences in Ontario. In particular, s. 36(2) of the Provincial Offences Act , R.S.O. 1990, c.

P.33, directs a court not to quash an information unless an amendment or particulars under ss. 33, 34, or 35 of that Act would fail to satisfy the ends of justice [ emphasis is mine below ]. Motion to quash information or certificate 36(1) An objection to an information or certificate for a defect apparent on its face shall be taken by motion to quash the information or certificate before the defendant has pleaded, and thereafter only by leave of the court. Grounds for quashing

(2) The court shall not quash an information or certificate unless an amendment or particulars under

section 33, 34 or 35 would fail to satisfy the ends of justice . [ 121 ] This brings us now to the Crown’s application to amend the information. According to s. 36(2) , if it were the case that the proposed amendment would fail to satisfy the ends of justice then the defendant’s motion to quash the information may then be granted. (

c) Motion To Amend the Information [ 122 ] According to s. 34 of the Provincial Offences Act , R.S.O. 1990, c. P.33, this court can amend the information where it appears to be defective in substance or in form at any point in the proceeding, if, after considering the evidence taken at trial; the circumstances of the case; whether the defendant has been prejudiced by the variance, error or omission; and whether in regards to the merits of the case the proposed amendment can be made without injustice being done.

In addition, s. 34(3) provides that the place where the subject- matter of the proceeding is alleged to have arisen is not material when there is a variance between the information and the evidence taken on the trial, except if there is an issue as to the jurisdiction of the court [ emphasis is mine below ]: Amendment of information or certificate 34(1) The court may , at any stage of the proceeding , amend the information or certificate as may be necessary if it appears that the information or certificate, (

a) fails to state or states defectively anything that is requisite to charge the offence; (

b) does not negative an exception that should be negatived; or

(

c) is in any way defective in substance or in form. Idem

(2) The court may, during the trial, amend the information or certificate as may be necessary if the matters to be alleged in the proposed amendment are disclosed by the evidence taken at the trial . Variances between charge and evidence

(3) A variance between the information or certificate and the evidence taken on the trial is not material with respect to , (

a) the time when the offence is alleged to have been committed, if it is proved that the information was laid or certificate issued within the prescribed period of limitation; or (

b) the place where the subject-matter of the proceeding is alleged to have arisen, except in an issue as to the jurisdiction of the court. Considerations on amendment

(4) The court shall, in considering whether or not an amendment should be made, consider , (

a) the evidence taken on the trial, if any; (

b) the circumstances of the case; (

c) whether the defendant has been misled or prejudiced in the defendant’s defence by a variance, error or omission ; and (

d) whether, having regard to the merits of the case, the proposed amendment can be made without injustice being done . … [ 123 ] Ergo, amending the location of the offence from “Britannia Road” to “Britannia Road West” on the information is not an unreasonable amendment to make and does not cause irremediable prejudice or cause injustice, since the defendant would have known the road he was on at least contained the words “Britannia Road” and that the alleged offence had occurred in Mississauga and that the actus reus of the offence involved not stopping for a red light at the intersection where the collision had occurred and that the identity of the driver of the motor vehicle that struck the two young girls was not at issue.

However, if, for example, an intersection in Mississauga existed at “Britannia Road” and Erin Mills Parkway or at “Britannia Road East” and Erin Mills Parkway, and did not have automatic traffic lights, then issues of prejudice and injustice may arise, but in the case at bar there is no evidence that this particular situation exists.

In addition, the omission of the word, “West”, does not go to the jurisdiction of this court to try the case. [ 124 ] Furthermore, even though the Crown may not have gotten the full name of the road correctly, informations can be amended at any point in the proceeding, as provided for under the Provincial Offences Act , where the proposed amendment would not prejudice the defendant or cause an injustice or the proposed amendment corresponds with evidence that had been given in the trial.

Moreover, I agree with the Crown’s argument that quashing the information or dismissing the charge for the omission of the word, “West”, from the correct name of the road, “Britannia Road West”, would in the circumstances cause injustice, considering the merits of the case. [ 125 ] Hence, since the amendment would not cause prejudice or injustice and the correct name of the road was tendered as evidence at

the trial, the word, “West”, will be added to the words “Britannia Road” to correct the name of the road for the location of the offence. (

d) Testing Testimonial Capabilities [ 126 ] In contending that there is reasonable doubt because the four independent witnesses gave conflicting, error-filled, and inconsistent testimony, the defendant points specifically to the testimony of Jose Pacheco, in which Pacheco testified that the event in question occurred sometime between noon to 1:00 p.m. when in fact it occurred about 3:26 p.m.; to Pacheco incorrectly testifying about the number of northbound lanes for Erin Mills Parkway being three lanes when there are actually more than three lanes when taking into account the designated left and right turn lanes; to Pacheco mixing up the colour of the car he observed going through the intersection by saying the colour was silver, then yellow and then red; to the testimony of David Milloy who had testified to observing the defendant travelling southbound on Erin Mills Parkway turn to go eastbound on Britannia Road West when in fact the defendant had not been driving southbound on Erin Mills Parkway, but had been driving eastbound on Britannia Road West; to the testimony of Raffaele Staffiere, who testified about a “stale” red light, which the defendant suggests refers to the red light being red for some time and just about to turn green for eastbound traffic; and, to William Wallace, who testified to being stopped for a red light in the soutbound left-turn lane when he observed a person in the air, to support the defendant’s statement he entered the intersection on a green light. [ 127 ] In addition, it is Jose Pacheco’s testimony about seeing the defendant’s vehicle go through the intersection on a red light that contradicts the defendant’s testimony on having entered the intersection while facing a green light and the light only changing to amber when the defendant had been one-third into the intersection. [ 128 ] This case further illustrates the importance and purpose of adversarial proceedings in the search for truth and in having witnesses who testify at a trial being subjected to cross-examination so that their ability to observe, recall, and to communicate, and to be truthful about a critical event can be tested, while they are under oath or affirmation and subject to the penalty of perjury.

Moreover, this aspect of the adversarial process enables the trier being able to resolve contested issues with reliable evidence. [ 129 ] Furthermore, in the archetypical evidence textbook titled, Sopinka, Lederman & Bryant: The Law of Evidence in Canada, 3rd ed. (Markham, Ontario: LexisNexis Canada Inc., 2009 ), a t p. 1147, the authors summarize what frailties may arise in a witness’ perception of an event and the distortion that could occur from the witness’

interpretation of what they had observed, and that a witness’ recollection of an event could be further distorted by a time lag or that a witness could use a word improperly or convey their thoughts inaccurately, which would also distort what they had actually observed of an event [ emphasis is mine below ]: §16.144 The evidence of a witness is acceptable as a general rule only if the witness perceived the fact about which he or she is testifying with his or her own senses. This requirement has been the basis of exclusionary rules, such as those relating to hearsay and opinion.

Perception includes more than merely observing an event . A counsel cross-examining with respect to a witness’ perception may inquire into the witness’ powers of observation . A witness may be suffering from some physical or mental impairment that may have diminished his or her ability to observe accurately . Similarly, environmental conditions, such as a dark night, or the placement of tangible obstacles, may also affect the witness’ visual acuity. Moreover, a cross-examiner can attempt to demonstrate, through questioning, that the witness was not physically in a position to observe the event.

All questions directed toward showing that the witness lacked the opportunity to observe the event, or that his or her observations were less acute than they might have been, are clearly proper in cross-examination . The vagaries of perception extend beyond a witness’ capacity and opportunity to observe , for individuals may interpret the same event differently . Accordingly, the accuracy of a witness’

interpretation of an event that he or she perceived is properly the subject matter of cross-examination . §16.145 A witness’ memory or ability to recall an event may be tested by cross-examination . The time lag between the event and the testimony may be tested by cross-examination. The time lag between the event and its recounting by the witness may result in a distortion in the recollection of the event . Furthermore, the witness may have been susceptible to other influences which permitted his or her mental reconstruction of the event to be altered.

Therefore, a cross-examiner is free to probe the stresses and other factors which may have had some impact upon the accuracy of the witness’ impression. §16.146 Another factor which could affect the trustworthiness of the testimony is the witness’ articulation of the events in the witness box . Testimonial narration results from translation of impressions into language . In relating what he or she saw, the witness may be confusing inference with actual fact .

In addition, distortion may arise if the witness uses a word improperly or otherwise conveys thoughts inaccurately . §16.147 All human testimony is subject to these frailties and, thus, cross-examination can be instrumental in bringing them to light so that the proper weight may be given to the evidence. The following statement by Morgan is apt:

The judicial device for exposing these weaknesses is cross-examination. Its most dramatic quality is its power to detect willfully false testimony, but more valuable is its capacity for bringing to light errors of perception, defects of memory and deficiencies of narration. It requires no extended trial experience to demonstrate that for every perjurer there are scores of honest witnesses whose direct examination produces the effect of falsehood because its subject-matter was incorrectly or incompletely observed or inaccurately remembered or inadequately narrated .

It might, then, be argued that in a judicial investigation no testimony should be received which is not tested in the fire of cross-examination. §16.148 Apart from the subconscious errors attributable to the human condition, an effective cross-examination may expose bias, detect falsehood, and generally reveal the witness’ mental and moral condition and whether his or her evidence is tainted by enmity towards a party to the litigation . [ 130 ] However, the defendant’s contention that the evidence from the four independent witnesses is inconsistent and therefore creates reasonable doubt is not necessarily true.

That is to say, if the four independent witnesses’ testimony can all be true at the same time, then their evidence would not be inconsistent or in contradiction. Furthermore, it is also possible that the defendant’s testimony could turn out to be the least credible, when scrutinized for logic or when considered in light of human experience. Therefore, a review of the impugned inconsistent testimony of the four independent witnesses and the defendant’s testimony will be undertaken next. (

e) What colour was the traffic light for the defendant? [ 131 ] In support of their argument that the inconsistencies and contradictions in the testimony of the witnesses have created reasonable doubt, the defendant points to David Milloy’s testimony about the defendant’s vehicle coming southbound on Erin Mills Parkway as one area of inconsistency in the Crown’s case. However, David Milloy did not testified about seeing what colour the traffic light for the defendant had been.

Although Milloy was incorrect in what direction the defendant had originally come from when he entered the intersection, Milloy was only a passenger in a motor vehicle driven by his wife travelling northbound on Erin Mills Parkway. Invariably, his view while a passenger, which normally means he is sitting to the right of the driver in the front seat may have been obstructed by his wife, who was the driver.

Therefore, Milloy may not have had a unobstructed or clear view of the entire intersection and only perceived the defendant coming from his left and believing the defendant had been driving southbound on Erin Mills Par

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